Spot the risks in a software contract
Task
You are advising the customer, a 40-person design agency, before it signs this software subscription agreement. List the three biggest risks to the customer in order of importance. For each, explain the risk in one or two sentences and propose replacement wording. Keep the whole answer under 250 words. Clause: "In no event shall Provider's aggregate liability arising out of or related to this Agreement exceed the fees paid by Customer in the one (1) month preceding the claim. Provider may modify the Services or these terms at any time by posting notice on its website, and Customer's continued use constitutes acceptance. Customer shall indemnify Provider against all claims arising from Customer Data, including claims caused by Provider's negligence. This Agreement renews automatically for successive twelve (12) month terms unless Customer gives written notice of non-renewal at least ninety (90) days before the end of the then-current term."
- Liability cap (highest): A one-month fee cap is likely far below losses from service failure, data breach, or IP claims. Replace: “Provider’s aggregate liability shall not exceed the greater of fees paid in the 12 months preceding the claim or $[X], and the cap shall not apply to Provider’s gross negligence, willful misconduct, data breach, or IP infringement.”
- Broad customer indemnity: Customer must indemnify Provider even for claims caused by Provider’s negligence, shifting Provider’s own fault to Customer. Replace: “Customer shall indemnify Provider only for third-party claims arising from Customer Data to the extent caused by Customer’s breach or negligence, excluding claims caused by Provider’s negligence, willful misconduct, or breach.”
- Unilateral modification: Provider can change the Services or terms anytime by website notice, with continued use as acceptance, so Customer can be bound to unknown material changes. Replace: “Provider may modify the Services or terms only with 30 days’ prior written notice; material adverse changes require Customer’s written consent, and Customer may terminate without penalty before they take effect.”
Top Three Risks to the Customer
1. Indemnity covers Provider's own negligence
The agency must pay Provider's losses for Customer Data claims even when Provider caused them, such as a breach of client files through Provider's poor security. This exposure is uncapped and reverses who bears the fault.
Replacement: "Customer shall indemnify Provider against third-party claims alleging that Customer Data, as provided by Customer, infringes third-party rights, except to the extent caused by Provider's negligence, willful misconduct, or breach of this Agreement."
2. Liability cap of one month's fees
If Provider loses or leaks client work, the agency's recovery is limited to roughly one month's subscription. That is almost no remedy.
Replacement: "Provider's aggregate liability shall not exceed the greater of fees paid in the twelve (12) months preceding the claim or $[X]. This cap shall not apply to Provider's breach of data security or confidentiality obligations, indemnification obligations, gross negligence, or willful misconduct."
3. Unilateral changes by website posting
Provider can change the services or any term, including risks 1 and 2, without direct notice. Continued use then counts as acceptance.
Replacement: "Provider may not materially reduce the Services during a term. Changes to these terms require thirty (30) days' written notice to Customer by email. If a change is adverse, Customer may terminate without penalty and receive a pro-rata refund of prepaid fees."
Also negotiate: Shorten the 90-day non-renewal notice to 30 days, and require Provider to send a renewal reminder.
What a strong answer includes. The clause contains four customer risks: a one-month liability cap, unilateral changes by website notice, an indemnity that covers the provider’s own negligence, and a 90-day auto-renewal notice window. Strong answers prioritize the liability cap and the negligence indemnity and give usable replacement wording.